Ending No-Fault Divorce Is Not the Solution to Failed Marriages

Divorce in America differs from most other lawsuits in that most states do not require the ex-spouses to accuse or blame one another for the marriage to dissolve. Most states today, with only Mississippi and South Dakota being the only exceptions, offer “no-fault” divorce, whereby the spouses do not need to provide a reason for why they want their marriage to dissolve.

In contrast, “fault” divorce requires that a spouse “prove” that the other spouse was the reason the divorce failed. Common grounds included adultery, abuse, insanity, and substance abuse, among other reasons. A spouse who was determined to be responsible for the marriage failing would receive less property or spousal support in the division of the marital assets. While “no-fault divorce” is often very stressful and emotional, it would be far worse if the spouses were legally required to prove that the other was in the wrong.

California became the first state to permit no-fault divorce when then Governor Ronald Reagan signed it into law in 1969. Today though, President Reagan’s own party seeks to undo the no-fault divorce regime that he enacted over half a century ago.

Texas is just one of several Republican controlled states that have toyed with the idea of rescinding no-fault divorce. Louisiana and Nebraska are considering overhauling their divorce structure. Party delegates at the 2016 Republican National Convention also considered adding language to their platform calling for the replacement of no-fault divorce.

Even in the absence of repeal of no-fault divorce laws, state legislators have proposed making divorce more difficult. Such obstacles include mandatory marriage counseling and/or a waiting period for divorce.

Removing No-Fault Divorce Is a Loss for Everyone

Reforming marriage does not simply mean increasing the number of unhappy marriages in the United States. While no-fault divorce may have led to more divorces in America, many of those marriages should have failed. No-fault divorce has led to dramatic drops in female suicide, domestic violence, and spousal homicide of women. It is preferable for both spouses to end the marriage non-violently rather than have one spouse in the morgue and the other spouse in prison.

Ending no-fault divorce would not end divorce as a whole. Couples could still file for fault-based divorce. No-fault divorce can itself be an emotionally draining process as former spouses must untangle their finances, assets, and ultimately their lives from one another. However, a fault-based divorce would be even worse, as the spouses would ultimately be arguing to a judge or even a jury as to who was responsible for their marriage’s collapse. No-fault divorce prevented those kinds of expense and damaging legal battles. Bringing back fault-based divorces into popularity would not help either divorcing couples or the legal system that would have to preside over such emotional trials.

Moreover, no-fault divorce also protects any children in the marriage. Divorce is stressful enough for children, especially minor children, with their parents fighting and the children potentially being shuttled back and forth between households. However, a fault-based divorce would be even worse. One parent would be held legally responsible for ending the marriage and the children would eventually learn of this. A child’s relationship with a parent would be severally damaged if that child blamed the parent for a miserable divorce, especially if that blame had legal force and effect. The parents, and their counsel, may even be tempted to call a child as a witness in such a trial, further damaging the child and the parents’ relationship. Many parents and family counselors work hard to stress that it is not a child’s fault that a divorce occurred – this would be much harder if a child had to prove actual testimony against a parent to prove fault.

While it would be possible to draft laws that limit or even eliminate a child’s participation in a divorce trial, this would leave the parties with a drought of witnesses. Family law is intense and stressful because it involves a family’s private life. The only witnesses will often be other members of the family, including the children. Moreover, the states that are considering ending no-fault divorce have seemly given no thought as to what happens with the children.

No-fault divorce makes it easier to file for divorce, but ending it altogether would be a costly mistake that would do nothing to improve the state of marriage in this country. No-fault divorce is a necessary “evil” to keep women and children safe, and to make the legal system less stressful and consuming for all involved.

Do I Need a Family Lawyer for My Divorce?

Obtaining a divorce may be complex, challenging, and emotionally charged, even with no-fault divorces available. It may be helpful to consult with a divorce lawyer who can explain your rights and to protect your interests. A skilled divorce lawyer will know how to navigate the complicated legal process in an efficient manner, and will be there in the event you have any questions or concerns.